Law Society of Kenya v Attorney General & another [2021] eKLR This is one of the IPPG wins that sought to curb the misuse of public offices and resources to crash any opposition to incumbency. 23. It is also argued that Section 5 of the Order Act has not been amended or repealed for alignment with the rights and fundamental freedoms given under the Bill of Rights. 24. The Petitioner took issue with the measures taken by NSAC to control the spread of Covid-19 through the use of the Order Act as being discriminatory and selective. The Petitioner submits that subsequent to the making of the impugned directives, there has also been discriminatory and selective application of the Covid-19 rules, the Order Act and the said directives. Several examples of these are referred to in the Affidavit of the Petitioner. 25. Submitting further on the purpose and effect principle in determining the constitutionality of a statute, the Petitioner cited Robert Alai v The Hon Attorney General & Another [20171 eKLR at where the Court held that: 34. In applying the purpose and effect principle, the court has to look at the history and circumstances under which the impugned provision or legislation was enacted. The marginal notes to section 132 show that the section was introduced in 1958, at the height of the state of emergency, a turbulent period in the history of this country. The purpose was to suppress dissent among the natives with the object of protecting and sustaining the colonial government in power then. However, the resultant effect was to instill fear and submission among the people. This cannot be the object of section 132 in the current constitutional dispensation when people enjoy a robust Bill of Rights that has opened the democratic space in the country, and in particular when Article 20(2) stresses that every person shall be entitled to the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. People have the right to exercise the right to freedom of expression to the greatest extent" subject only to the limitation of that right under Article 33 (2) or any other provision in the constitution. [Emphasis added] 26. On the need to align legislation with the Constitution, the Petitioner cited Jacqueline Okuta & another v Attorney General & 2 others [20171 eKLR where the Court stated that: Above all, I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. I my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution. Upon promulgation of the constitution of Kenya 2010, it was expected that certain provisions in our laws were to be amended to align them to the letter and spirit of the constitution, but almost seven years later we still have such provisions in our statutes! [Emphasis added] 27. The Petitioner also submitted on the aspect of public interest. It argued that the primordial question posed from the responses by the Respondents is whether individual rights and fundamental freedoms should yield to alleged concerns of public interest and national security. The Petitioner avers that Courts have held time without number in Kenya and elsewhere that this contest must always be determined in favour of individual rights and fundamental freedoms. The Petitioner relied on a number decisions on the question. 28. Citing Sudi Oscar Kipchumba v Republic (through National Cohesion & Integration Commission) [2020] eKLR the Petitioner submitted that the Court determined the question posed above in the following words: 15. The Applicant insists that the Court fundamentally misapprehended both the law and the facts in its analysis and findings. In particular, in both the documents he has filed before this Court as well as in the oral arguments of his advocates before me, the Applicant makes the following four points: First, that the finding by the Honourable Court that it was in the public interest to detain the Applicant was an erroneous interpretation of the public interest matrix and inconsistent with the settled principles and thereby negates the fundamental rights, freedoms and liberties as set forth under Article 29 of the Constitution. The Applicant argues that the Court's decision was not proportionate in balancing the rights and liberties of the Applicant against alleged public interest. The Applicant argues that our http://www.kenyalaw.org - Page 7/34